Roper Greyell's Jennifer Hogan on understanding workplace rights, mental disability protections, and the duty to accommodate
This article was sponsored by Roper Greyell
Addressing mental health in the workplace is a complex and critical responsibility for both employers and employees. Specializing in labour and human rights law, Jennifer Hogan, a partner at Roper Greyell LLP, advises employers on their responsibilities while helping them manage workplace challenges in compliance with the law.
“The law protects employees from being treated unfairly or denied benefits because of their mental disability, whether real or perceived,” Hogan says.
Since joining Roper Greyell in 2011, Hogan has dedicated her career to advising employers on their workplace responsibilities. “As a firm that represents employers, we understand the challenges businesses face when it comes to balancing legal compliance with maintaining a productive and efficient workplace,” she says.
Hogan emphasizes the importance of a proactive approach to managing mental health in the workplace while fostering fairness and equity.
Hogan emphasizes that creating inclusive workplaces that empower employees is not just about satisfying legal obligations. “Employers who proactively address mental health in their workplaces not only respect their employees’ rights but also foster organizational performance and stability,” she explains.
However, when the duty to accommodate arises, addressing mental health in the workplace is a shared responsibility. While the primary responsibility in the accommodation process is with the employer, employees play an important role in the process, including by initiating the request for accommodation, providing necessary medical documentation and cooperating with the employer to facilitate reasonable accommodations.
“Human rights laws in Canada play a really important role in protecting employees with disabling mental health conditions,” Hogan explains. “The very purpose of this legislation is to prevent discrimination based on personal characteristics, such as mental disabilities, that are explicitly listed in the law.”
A critical component of these laws is their protection against retaliation.
“Employees are protected from being penalized for making a human rights complaint or participating in the process of a complaint,” Hogan emphasizes.
Additionally, these laws provide a formal process for employees to file complaints and seek remedies for alleged violations. This protection against discrimination extends to the employer’s duty to accommodate, a legal obligation that often requires nuanced understanding and careful application in cases involving mental disabilities.
One of the concepts that is often misunderstood in human rights law is the duty to accommodate. The duty to accommodate means that sometimes it is necessary to treat someone differently in order to prevent or reduce discrimination.
However, the duty to accommodate is not a free-standing duty; meaning that employers do not have a duty to accommodate every employee in their workplace with a mental disability. Indeed, employers should not assume that an employee has a disability or that the disability impacts the employee’s ability to perform the duties of their job.
The duty to accommodate arises when an employee requests accommodation or where the circumstances trigger an employer’s duty to inquire. The latter can be illustrated by the following example:
“Let’s say you have an employee with an excellent attendance record for three years. Suddenly, their attendance drops, or they begin engaging in behaviour that’s out of character. Something is amiss,” Hogan describes.
“If there’s nothing obvious that accounts for the change and the circumstances suggest the issue(s) could be related to a protected characteristic—such as a mental disability—the employer has a duty to inquire whether the employee requires accommodation.”
This inquiry involves having a conversation with the employee to understand whether something, such as a mental disability, is affecting their performance and/or ability to attend at work. Once the employer becomes aware of the need for accommodation, the duty to accommodate is triggered.
Another misconception is that once the duty to accommodate is triggered, an employer must provide any and all accommodations that an employee requests. That is not the case. An employer’s obligation is to provide an employee with a reasonable, not a perfect or even preferred, accommodation. An employee’s obligation is to assist the employer in facilitating a reasonable accommodation.
Importantly, while employees have a right to privacy over their medical information, this right is balanced against the employer’s right to manage their workplace and to be provided with sufficient medical information to implement accommodations effectively.
An employer’s obligation to accommodate an employee with a mental disability is also not unlimited. An employer is required to accommodate an employee to the point of undue hardship. This means an employer must take all reasonable and practical steps. While undue hardship is a high bar, what is reasonable and practical will depend on the circumstances.
“Factors such as financial cost, employee morale, workforce flexibility, and the size of the organization all play a role in determining whether accommodation is possible,” Hogan notes.
For example, what constitutes undue hardship for a small business may differ significantly from a large municipality or a corporation with multiple locations. Importantly, the duty to accommodate does not require employers to create new positions or fundamentally alter job responsibilities beyond reasonable limits.
“For example, employers can modify work hours or reassign specific tasks, but if an employee’s condition renders them completely unable to perform their role—even with accommodations— [an employer] may reach the point of undue hardship,” Hogan explains.
Another common misconception is that an employer can never terminate the employment of, or impose employment consequences on, an employee with a disability. “The fact that an employee has a mental disability does not insulate them from termination,” Hogan explains. What an employer cannot do is terminate an employee’s employment because of their disability (or perceived disability). Importantly, an employee’s disability cannot play any part in an employer’s decision.
However, if an employer terminates an employee’s employment for a reason(s) completely unrelated to their disability (for example, if the employee is a poor performer and their poor performance is completely unrelated to their disability), then the termination would not be discriminatory.
A recurring point for Hogan is the importance of building trust between employers and employees. She notes that employees are often reluctant to disclose mental disabilities due to fears of retaliation or stigma.
“Promoting mental health awareness and normalizing conversations in the workplace can go a long way,” Hogan explains. “When employees trust their employers, they’re more likely to seek the accommodations they need, fostering a healthier and more inclusive environment.”
Employers face the delicate task of balancing their right to manage the workforce with their obligation to protect employees’ rights. Hogan advises employers to take a holistic approach, considering the broader purpose of human rights legislation: to eliminate inequality and promote equity.
By prioritizing accommodations and fostering trust, employers can not only comply with legal obligations but also create a culture where employees feel supported.
